The Reserved Seats Case: Supreme Court’s decision put Pakistan’s democracy in peril

What is the reserved seats case?

In the words of PTI’s lawyer, Salman Akram Raja, the reserved seats case currently being heard by the Supreme Court of Pakistan “is a case that has greater far-reaching implications for the Constitution of Pakistan and democracy than almost any case since the Maulvi Tamizuddin case of 1956.”

According to Article 51(1) and 3(a) of the Constitution of Pakistan, “There shall be [three hundred and thirty-six] seats for members in the National Assembly, including seats reserved for women and non-Muslims. In effect, there are 70 reserved seats in the national assembly (60 seats for women & 10 for minorities), which are allotted to political parties based on their representation in the assembly.”

For example, if a party has 70% representation in the National Assembly, it should be allocated 49 reserved seats.

The current [illegitimate] Form 47 government and the Election Commission of Pakistan (ECP) have asked the Supreme Court to interpret the following line in Article 51(6)(d) and (e), which determines the general seats that form the basis for the allocation of reserved seats:

“… the total number of general seats won by a political party shall include the independent returned candidate or candidates who may duly join such political party within three days of the publication in the official Gazette of the names of the returned candidates.”

The government & ECP read the word ‘include’ to mean that there should be at least one directly won seat held by a political party before independents joining it can be added.

“In other words, 1 plus 86 equals 87, but 0 plus 86 equals 0. This strained interpretation is being used by the ECP to deny PTI and SIC 23 reserved seats in the National Assembly and 55 reserved seats in the Provincial Assemblies,” writes Salman Akram Raja in his tweet. 

The denial of reserved seats to PTI (or SIC) would enable a potential two-thirds majority for PML-N/PPP and others in the government, allowing for constitutional amendments that could favour certain parties and prevent the exposure of electoral fraud committed on February 8 and 9, 2024.

The reserved seats case is currently being heard by the full court of the SC.

Notably, after the 2018 election, the Balochistan Awami Party (BAP) was allowed to file lists for reserved candidates after independents had joined it, which was the correct interpretation of the Constitution.

What is the Supreme Court’s role in creating the reserved seats issue?

In January 2024, just weeks before Pakistan’s elections, the Supreme Court, led by CJP Qazi Faez Isa stripped PTI of its electoral symbol, ‘bat,’ by upholding the Election Commission of Pakistan’s decision. The Supreme Court verdict was described as “excessive, punitive… and a huge blow to our fundamental rights,” leading to the disenfranchisement of tens of millions of voters across Pakistan.

Asad Rahim Khan, a lawyer and a writer, writes: few verdicts in recent memory have been more ludicrous in reasoning, more corrosive in outcome, and more damaging for democracy than the bat symbol ruling, stripping the country’s largest party of its electoral sign right before polls. Yet even here, the Pakistani voter shocked the system: despite disenfranchisement before and rigging after, the party won a plurality. In the months since, however, that same judgement remains a rolling disaster: parliament is paralysed, reserved seats are up in the air, and a full bench of the Supreme Court picks through the mess.

As a result of this ruling, PTI-backed candidates were forced to run as independents with individual symbols.

In our article, we highlighted how the Supreme Court’s decision to revoke PTI’s bat symbol would have serious consequences for the future of Pakistan’s democracy.

Some of the fears highlighted included that “PTI leaders and workers have been facing arrests and detentions over the past year and have therefore remained underground. PTI has, until now, mobilized and organised itself using a unified symbol, a bat, which would no longer be possible. Furthermore, PTI leaders are likely to encounter detentions and abductions should they emerge to campaign with their new symbol”, and secondly, “Individual party symbols will inevitably confuse the voters, particularly in areas with low literacy rates”

Our fears came true as PTI leaders were detained and kept in arbitrary detention as they tried to campaign. Consequently, PTI’s campaign was predominantly done through social media, which meant that the segment of the population with no access to the internet would remain oblivious to their candidate. Additionally, PTI candidates were abducted by the state and coerced into leaving the party and withdrawing from the elections. Inevitably, a new candidate had to be endorsed, often an unknown face, with a different symbol.

For instance, in Lodhran NA-155, PTI’s final candidate, Rao Muhammad Qasim, was their third replacement, fielded the day before elections after the previous two candidates were abducted, tortured, and coerced into dropping out. The different symbol inevitably caused confusion and affected the election outcome.

We also raised the point that all PTI-backed independent candidates “who win their seats will be notified as independent winners and will have to join a party. This makes them vulnerable to being coerced into joining another party under duress or influence, paving the way for horse-trading.”

This prediction also came true, as some candidates who contested as PTI-backed independents, such as Waseem Qadir in NA-121 Lahore, joined PML-N after winning their seats.

Finally, and most importantly, we raised the issue of reserved women and minority seats.

“PTI has also lost the prospect of ‘reserve seats.’ The National Assembly has 70 seats reserved for women and religious minorities. Assuming that PTI has 70% representation, it will miss out on 49 National Assembly seats. Similarly, there are 151 reserved seats in the provincial assemblies.”

According to Rule 94 of the Election Rules, parties are entitled to reserved seats only if allotted a symbol. This is why PTI-backed independents had to join the Sunni Ittehand Council (SIC). However, ECP sprung a second trap. The Election Act requires parties to submit candidate lists to the ECP before elections if they want reserved seats. The Sunni Ittehad has a symbol, but no list, while PTI has a list, but no symbol.

If all this sounds like a blatant attempt to suppress the will of the people further, that is because it is.

In fact, the government and the ECP have gone a step further to request that the seats that PTI/SIC is entitled to be distributed among the current parties in the assembly. This is as absurd as it sounds and will give a 2/3 majority to a setup that does not even have legitimacy or a public mandate.